Davis, Adrian v. Washington / Hammon, Hershel v. Indiana (06/19/2006)

Questions presented:(1) Whether an alleged victim's statements to a 911 operator naming her assailant, admitted as "excited utterances" under a jurisdiction's hearsay law, constitute "testimonial" statements subject to Confrontation Clause restrictions enunciated in Crawford v. Washington, 541 U.S. 36 (2004)? (2) Whether an oral accusation made to an investigating officer at the scene of an alleged crime is a testimonial statement within the meaning of Crawford?

BY GABE ROTH, MEDILL NEWS SERVICE

On Feb. 1, 2001, Michelle McCottry called 911 to say she had just been beaten by an acquaintance. The call was admitted into evidence at the trial of her assailant, Adrian Davis, and led to his conviction.

About two years later, Amy Hammon excitedly told police about a stabbing she had just witnessed. That statement was admitted into evidence at the trial of the stabber, Hershel Hammon, and led to his conviction.

Neither McCottry nor Amy Hammon appeared in court to testify, despite the 6th Amendment's assurance that someone accused of a crime has "the right…to be confronted with the witnesses against him."

When a witness, who has given an out-of-court statement relating to a crime, does not testify at trial due to some extenuating circumstance or relationship to the accused, the courts must decide if his or her statement may be used against the alleged offender.

In companion cases, Davis v. Washington and Hammon v. Indiana, the U.S. Supreme Court is being asked to determine if an out-of-court statement is "testimonial" and admissible only if the witness is present to be cross-examined, or "non- testimonial" and admissible irrespective of the confrontation clause.

Davis and Hershel Hammon hope that their inability to cross-examine these witnesses compels the Court to overturn their convictions.

The Supreme Courts of Washington and Indiana, which upheld the convictions, said that the statements, though hearsay, are admissible. The statements fall under the "excited utterance" hearsay exception, they said, which makes them sufficientlyworthy.

Excited utterances are non-testimonial and thus admissible without cross-examination because, they said, the witness was so "excited" by having witnessed a crime that she does not have the ability to editorialize what she has just seen.

When Michelle McCottry called 911 in Feb. 2001, she hung up before speaking to anyone. When the 911 operator called back, McCottry said that a man named Adrian Davis had beaten her and then ran away.

Davis was arrested for violating the provisions of a no-contact order that McCottry had against him, and at trial the state of Washington introduced the 911 call into evidence. Davis' lawyer objected unsuccessfully to have the call kept out of court, saying that such admission violated the confrontation clause since McCottry could not be located and Davis could not cross-examine her.

Davis was convicted, and the appeals court upheld his conviction.

By a vote of 8-1, the Washington Supreme Court affirmed. Justice Faith Ireland wrote in her opinion that the 911 call could be admitted into evidence since it "falls within a firmly rooted hearsay exception [and] contains particularized guarantees ofworthiness."

When in February 2003, Peru, Ind., police officers responded to a domestic violence disturbance at the home of Hershel and Amy Hammon, Amy told one of the officers that she and her husband had been in an argument that had become physical. She said her husband broke a number of objects in their apartment and hit her in the chest.

Hershel was arrested on charges of domestic battery. The trial judge, citing the excited utterance hearsay exception, allowed the police officer to testify as to what Amy Hammon had said to him right after she was beaten. Amy had refused to testify against her husband at trial.

Hershel's lawyers contended that her absence at trial and the judge's decision to admit her statement taint Hershel's conviction. But the Indiana Supreme Court did not agree.

In a 5-0 vote, the state's highest court upheld Hammon's conviction. Justice Theodore Boehm said that he agreed with the trial court's estimation that Amy Hammon's statement to the police was non-testimonial, since it was given during a "preliminary investigation."

"Amy's motivation," Boehm wrote, "was to convey the basic facts and there is no suggestion that Amy wanted her initial responses to be preserved or otherwise used against her husband at trial. Accordingly, her oral statement was not testimonial."

The U.S. Supreme Court, which accepted the cases for review on Oct. 31, 2005, is considering these companion cases in light of a 2004 confrontation clause case, Crawford v. Washington.

In the Crawford case, Sylvia Crawford witnessed her husband Michael stabbing another man. Sylvia's statement to the police, given shortly after the stabbing, was used to convict Michael, though Sylvia did not herself testify at trial, claiming spousal privilege.

Justice Antonin Scalia, in writing for the Court, said that "where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is confrontation."

Despite such clear language from Scalia, the Crawford decision has not put the issue of what constitutes a testimonial statement to rest.

Instead, said Jeffrey Fisher, a Seattle lawyer who filed a brief on behalf of Davis, "courts across the country have been divided after Crawford" over how to identify a testimonial out-of-court statement.

Richard Friedman, a confrontation clause expert and professor at the University of Michigan Law School, filed a brief on behalf of Hammon. From the Crawford decision and his own research, he said, he has devised his own test for what comprises a testimonial statement.

"Fresh accusations made to government agents should be considered testimonial," he said.

According to King County, Wash., prosecutor James Whisman, the cases may turn on who should be considered a "government agent," or, more generally, someone to whom statements routinely used in court are made.

In his brief opposing certiorari for the Davis case, Whisman said that he hopes the Supreme Court sees a difference between a 911 operator and an investigating police officer.

"Courts have noted that 911 operators do not generally have training equivalent to that of police officers [and] do not assess evidence and make subjective or qualitative legal judgments about that evidence," he wrote.

Friedman disagreed, noting that he thinks it's unlikely that the Court will distinguish between the two. "It would unfortunate if they decide to split the baby and decide differently in the two cases," he said.

Amy Hammon, unlike Michelle McCottry, did talk to a government agent—a police officer. But in deeming her statement non-testimonial, the Indiana Supreme Court looked at Amy Hammon's state of mind at the time she talked to the reporting officer. Her statement, they said, was merely the reporting of a crime and not with the knowledge that her statement could be used against her husband in court.

Both the Washington and Indiana Supreme Courts said that the statements in question have the "indicium of reliability" mentioned by Scalia in his Crawford opinion. The statements, the state courts held, were given under duress, and the speakers likely lacked the capacity to lie under those circumstances.

On June 19, 2006, the Supreme Court spoke on the issue, with Justice Scalia again doing the talking for the Court.

In siding with the state of Washington, but then siding with Hammon in his case against Indiana, the issue turned on whether statements made to police during interrogations are testimonial or not.

Statements are nontestimonial (and not problematic under the Confrontation Clause) when made in the course of interrogation under circumstances objectively indicating that the primary purpose of interrogation is to enable police assistance to meet an ongoing emergency. That was the case, the Court reasoned with the 911 call in Davis' case.

They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution. That was the case with Hammon in that the primary, if not sole, purpose of the investigation was to investigate a possible crime.